| Neb. | Jan 15, 1883
It is an inflexible rule that when there are special provisions of a statute plainly referring to a particular matter, and there are general provisions of the same, or another statute in force at the same time, referring to a class or series of matters including the former, the provisions of the special statute will prevail so far as such particular matter is concerned, and the provisions of the two differ with each other. Under this rule the provisions of secs. 39 and 40 of chapter 78, Compiled Statutes, must be held to apply to and control appeals from the final decision of the county board, in cases of damages to land caused by the laying out and establishing of public roads, rather than those of section 37 of article 1, chapter 18. Indeed the above proposition concedes too much to the position of defendant in error. The latter section can scarcely be said to contain a general provision, which even in the absence of a special one would apply to a case like the one at bar. It is only in the most geheral sense that the owner of lands damaged by the establishment of a highway can be said to hold a claim against the county within the meaning of said section, if at all.
Upon reference to secs. 39 and 40 of chap. 78, it will be seen that in all cases of appeal from the final decision of the county board, by an applicant for damages claimed to be caused by the establishment of a road, or by the pe
In the case at bar, no notice of appeal was served on anybody. No notice was ever made out. The chairman of the county board waived notice in writing on the face of the appeal bond. This being a statutory proceeding, neither the clerk nor the chairman of the board could waive the service of the notice; most certainly not the chairman, a service on whom would be a nullity.
The object of the notice is, that the county, as a body corporate, may know that an appeal has been taken, that it may, through its proper officers and attorney, prepare for trial. The county, as a body corporate, is charged with notice when notice is served according to law, not usually when one of its servants has gratuitously waived service. It is argued that the waiver of notice being endorsed on the bond, and the bond being approved and filed by the county clerk, is equivalent to a notice of appeal being served on the clerk. But the statute, which as we have seen especially applies to cases of this kind, requires no bond, hence the bond was a nullity with all of its indorsements and filings.
The notice of appeal, and its timely service on the county clerk, is the only foundation for jurisdiction in the district court in this class of cases. These being wanting in this case, the said court had no jurisdiction to render the judgment set out in the record.
The judgment of the district court is therefore reversed and the cause dismissed.
Judgment accordingly.